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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Multiplex Constructions (UK) Ltd v Mott MacDonald Ltd [2007] EWHC 20 (TCC) (10 January 2007) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2007/20.html Cite as: [2007] EWHC 20 (TCC), 110 Con LR 63, [2007] CILL 2446 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION
COURT
131-137 Fetter Lane London EC4A 1HD |
||
B e f o r e :
____________________
![]() ![]() ![]() ![]() ![]() | Claimant | |
and | ||
![]() ![]() ![]() ![]() ![]() | Defendant |
____________________
A subsidiary of Ubiqus Reporting UK
Official Court Reporters
Clifford's Inn, Fetter Lane. London EC4A 1LD
Tel: 0207 269 0370 Fax: 0207 405 9884
Wednesday, 10th January 2007
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR JUSTICE JACKSON:
Part 1: Introduction
Part 2: The Facts
"The consultant shall retain in complete and proper form for the entirety of the period referred to in Clause 12.1 all pertinent records relating to the Services including (but withoutlimitation)
all records relating to the costs associated with the performance of the of the Services, until the discharge of his duties under this Agreement. The Client, the Client Representative, and any authorised representative of the Client shall, at all reasonable times, be permitted to have access to such records. Copies of the records shall be delivered by the Consultant free of charge to an office of the Client or the Client Representative at the time and in the manner directed by the Client or the Client Representative. To the extent that any calculation, drawing, document or other record of the Consultant is to be created and/or maintained on a computer or other electronic storage device, the Consultant shall comply with the procedure notified to it by the Client or the Client Representative for back up and for copies of such calculations, drawings, documents and other records to be stored at a place other than is project office."
"24.2 If a dispute or difference has under this Agreement, any party ("the Referring Party") may give notice ("the Adjudication Notice") to the other party or parties to this Agreement (individually the "Referred Party"), notifying the Referring Party's intention that the dispute or difference be referred to adjudication under this Agreement. The Adjudication Notice shall set out the nature and a brief description of the dispute or difference, details of where, when and how the dispute or difference has arisen and the redress being sought…
24.7 Where a dispute or difference has been referred to an adjudicator, the decision of the adjudicator shall be binding on the parties until the dispute is finally determined by agreement, or arbitration. The adjudicator's decision shall be enforceable by the English courts as a contractual obligation under this Agreement and not as an arbitral award. Notwithstanding any referral to adjudication, the parties will perform and continue to perform this Agreement before, during and after such adjudication in accordance with the terms of this Agreement, any adjudicator's decision, and any court order enforcing such decision."
"The Conditions of Contract does not define "records". In the context of the Project,Multiplex
believe that the records means: all literature, drawings, diagrams, designs, plans, details, specifications, schedules, reports, calculations, cost plans, budgets, software, computer storage discs, computer printouts, data files, databases, source codes, estimates, models, photographs, articles or works prepared by
Mott,
its servants or agents, and/or received by
Motts
in connection with the Project.
Accordingly, pursuant to Clause 13.1 of the conditions of contract, we requireMotts
by 5pm on 5th September 2006 to:
1. grantMultiplex
access without charge to the records set out below; and
2. set out in writing its proposal for grantingMultiplex
access to these records.
Document Request.
In respect of the Services carried out byMotts
from 20th May 1998 to 28th September 2002,
Multiplex
requests that they are given access to the following documents:
1. all records (as defined above) recording the discussion with WNSL relating to the role ofMotts;
2. all records (as defined above) detailing any collaboration with World Stadium Team ("WST") in order to make an initial recommendation to WNSL on the technicalviability
of the Works;
3. all records (as defined above) detailing the studies undertaken byMotts
in order to
verify
the feasibility of WNSL's requirements;
4. all records (as defined above) detailing the review undertaken byMotts
with WNSL in relation to the proposed design and
construction
approaches to the Project, and the cost implications;
5. all records (as defined above) which detail preliminary information to enable WST to prepare its outlined proposals and for Messrs. Franklin and Andrew to prepare the outline cost plan for the Project;
6. all records (as defined above) which detail the information provided to WNSL to enable their quantity surveyors to undertake an initial cost estimate of the design solutions for the Project, together with any presentation materials given to WNSL;
7. all records (as defined above) detailing liaising with WNSL to agree a programme for the whole of the design andconstruction
of the Works;
8. all records (as defined above) detailing a deliverables list of all drawings, specifications and documents that needed to be produced at the Scheme Design Scheme, including any agreement with WST as to the sequence of exchange of information to ensure the civil and structural designs are integrated and co-ordinated with the architectural, electrical and mechanical elements;
9. all records (as defined above) detailing the work done byMotts
in preparing specifications for the Works;
10. all records (as defined above) detailing the work done byMotts
in co-ordinating the design of the works into the overall design; and
11. all records (as defined above) betweenMotts
and WNSL during the period February 2002 to September 2002."
"You are correct in that the Novation Agreement does not expressly define "pertinent records". By itsvery
nature, a record either records or is intended to record an event or occurrence. The definition that you have sought to apply is too wide as are the specific requests that you have listed at items 1-11 of your letter.
Subject to the reservations contained in this letter, we are happy to grant you access to appropriate records and will seek to locate any such records falling within the itemised paragraphs of your letter, insofar as such documents are in fact records. However, many such records will in fact have been archived and will need to be retrieved.
You will also appreciate that there may be records that we are contractually obliged to keep confidential to WNSL and which cannot be produced to you without permission of WNSL. Our position in relation to those records must remain reserved. Once we have located any pertinent records falling within the scope of your request, and have identified any which may be confidential to WNSL, we would be happy to seek WNSL's permission for them to be disclosed to you, if that is what you wish. You may feel it would be better for you make such an approach to WNSL yourself in this regard, but we shall await confirmation of your preference.
To comply with your request we therefore propose the following:
1. MM will retrieve from archive and assemble packages of records pertinent to the performance of our services and falling within the scope of your request;
2. To the extent that any such records may be confidential to WNSL, we shall await your confirmation as to whether you wish us to contact WNSL to obtain permission for their release to you or whether you intend to approach WNSL directly. In any event, WNSL's representative can be invited to attend and review such records and decide whether to grant written approval for the disclosure of those records to MPX.
3. Thereafter, MM will grant access for MPX to inspect and will, if requested, provide MPX with a copy of any record falling within the scope of paragraph 1 above. Insofar as any such records fall within the scope of paragraph 2 above, this can only occur upon receipt of WNSL's written approval to their disclosure.
Clearly this task will take some considerable time and will require input from senior members of our team who have the knowledge and understanding of the records you require. As these are the same individuals who are critical to your programme requirements, we propose to undertake this work to a programme that we hope can be agreed and achieved without affecting critical elements of our work.
We are unable to confirm time scales at this time until we have reviewed the quantum of records available following their retrieval from archives, but in the meantime we seek your acceptance to our proposal."
(i) a dispute or difference betweenMultiplex
and
Mott
![]()
Macdonald
as to the meaning to the given to the words "all records pertinent to the Services" within clause 13.1;
(ii) a dispute or difference between
Multiplex
and
Mott
![]()
Macdonald
concerning the extent to which the series of specific of document requests (numbered 1 to 11) fall within the words "all records pertinent to the Services";
(iii) a dispute or difference between
Multiplex
and
Mott
![]()
Macdonald
regarding the meaning of the words "at all reasonable times" within clause 13.1;
(iv) a dispute or difference between
Multiplex
and
Mott
![]()
Macdonald
regarding the extent to which (if any) such confidentiality obligations as
Mott
![]()
Macdonald
may owe to WNSL preclude provision of "all pertinent records relating to the Services" by
Mott
![]()
Macdonald
to
Multiplex.
![]()
"A Declaration (and/or Decision) thatMultiplex
was correct in its definition of "all records pertinent to the Services" set out in its letter dated 30th August 2006 and/or a Declaration (and/or Decision) as to the true meaning to be given to the words "all records pertinent to the Services" (Clause 13.1 of the Conditions of Contract)."
"90. I therefore interpret the words "all pertinent records relating to the Services" in Clause 13.1 to mean all files and documents (paper or electronic) and/or computer data files which have a dependent relationship with the Services and are suitable in nature or character to preserve knowledge or information accumulated by the persons withinMotts
(or their sub-consultants) engaged directly on the Project. It follows that I reject the definition advanced by
Multiplex
(transposed from the term "Data" in the Design and
Construct
Contract), even though some documents described by that definition would fall within this definition, and I reject the
very
narrow definition advanced by
Motts
…
92. Applying this definition to the
various
descriptions of documents in contention, the following are, for example, records provided the conditions of "pertinent" and "relating to the Services" are met: a collection of literature in a library of technical knowledge justifying and explaining the design; drawings, diagrams, designs, plans, details, specifications, schedules and calculations; cost plans and budges; programmes; printouts and computer data files and databases; models for all structural elements within the Stadium and for the loadings imposed by any one element on the rest of the structure, together with the cumulative (or combined) loads imposed by
various
elements at
various
significant points within the structure; minutes of meetings and e-mails. These descriptions would apply to both paper and electronic records."
"129. That the true meaning to be given to the words "all records pertinent to the Services" (Clause 13.1 of the Conditions of Contract) is: all files and documents (paper or electronic) and/or computer data files which have a dependent relationship with the Services and are suitable in nature or character to preserve knowledge or information accumulated by the persons withinMotts
(and/or its sub-consultants) engaged directly on the Project.
130. That the series of specific document requests (numbered 1 to 11) set out in the letter sent by
Multiplex
to
Motts
on 30th August 2006 fall within the words "all records pertinent to the Services" (Clause 13.1 of the Conditions of Contract) as defined above.
131. In respect of such specific document requests, that there are no relevant confidentiality obligations that
Motts
owe to WNSL so as to preclude the provision of "all pertinent records relating to the Services" by
Motts
to
Multiplex.
![]()
132.
Motts
shall provide access to the said records within 7 days of the date of this decision and
Motts
shall then deliver copies of records as
Multiplex
may direct."
"We refer to the decision made by the Adjudicator, Stephen York.We have to record that we do find the Adjudicator's decision to be extremely confusing and provides little or not practical guidance as to how compliance with his decision may be achieved. Nevertheless, MM is doing its best within the time available to identify the pertinent records which you are entitled to access, and intends to provide that access in a practical and pragmatic way.Insofar as the Adjudicator has called for documents that are outside the definition of "records" that you put forward in your letter of 30th August 2006, MM must reserve its position and its right to argue that the Adjudicator had no jurisdiction to so decide.Notwithstanding and entirely without prejudice to the above MM will be providing access to a substantial amount of documentation tomorrow at 12 noon at its Croydon office atMott
![]()
MacDonald
House, Sydenham Road, Croydon. MM's position remains fully reserved, including as to whether all documents to which access will be given are in fact pertinent records relating to the Services and/or whether they fall within the categories of records to which access was sought by your client or has been directed."
Part 3: The Present Proceedings
"AND the Claimant claims:(i) A Declaration that the Decision of the Adjudicator is binding uponMott
![]()
Macdonald
and that
Mott
![]()
Macdonald
are contractually obliged to render full performance forthwith (or within such time as the Court shall determine).
(ii) Specific performance orderingMott
![]()
Macdonald's
compliance with the Decision in accordance with effect of Clause 24.7.
Alternatively:(iii) An injunction ordering and/or requiringMott
![]()
Macdonald
to comply with the Decision in accordance with the effect of Clause 24.7.
Alternatively:(iv) Damages together with interest on those damages under section 35A of the Supreme Court Act 1981."
Part 4: The Adjudicator's Jurisdiction
(i) In relation to the first issue in the adjudication, namely the interpretation of the phrase in clause 13.1 "all records pertinent to the services", the dispute between the parties was a narrow one. That dispute concerned whether or not the interpretation set out inMultiplex's
letter dated 30th August 2006 was correct. In the course of correspondence
Mott
never put forward an alternative interpretation of that phrase, and
Multiplex
never succeeded in widening the dispute.
(ii) Against the background of the correspondence passing in August and September 2006 it could not be said that there was a dispute between the parties concerning the broader question of what was the true meaning of the phrase "all records pertinent to the services".
(iii) In those circumstances, the relief claimed by
Multiplex
in respect of the first dispute (which I have read out in part 2 above) was too wide.
Multiplex
could not enlarge the adjudicator's jurisdiction by asserting a broad dispute which did not exist.
(iv) The adjudicator in his award answered the broad question, namely what was the true meaning of the phrase "all pertinent records relating to the services". The dispute between the parties was not as wide as that. Accordingly, the adjudicator did not have jurisdiction to adjudicate upon so broad a question.
(
v)
It can be seen from paragraph 90 of his award that the adjudicator rejected the interpretation of the phrase "all pertinent records relating to the services" put forward by
Multiplex
in its letter of 30th August 2006. In those circumstances, the adjudicator should have dismissed
Multiplex's
claim altogether. Alternatively, he should only have ordered disclosure of material which (a) fell within the scope of the adjudicator's interpretation, and also (b) fell within the scope of
Multiplex's
letter dated 30th August 2006.
Part 5: Compliance with the Adjudicator's Decision
Part 6: What relief (if any) should this court grant to Multiplex?
(i) The jurisdiction issue has been fully argued. Mr Hughes has persuaded me thatMultiplex's
case on this issue is of sufficient strength to warrant summary judgment.
(ii) The question of the adjudicator's jurisdiction remains a live issue between the parties.
(iii) As a matter of policy the Technology and
Construction
Court should at each stage of litigation resolve every live issue which is then capable of resolution. It is a tenet of case management that this court is constantly seeking to narrow the issues between the parties.